Page:Harvard Law Review Volume 5.djvu/153

EQUITY JURISDICTION. 1 37 devisee of the deceased debtor was a defendant, if there were or might be specialty debts, the decree directed that, in case the specialty creditors should exhaust any part of the personal estate in payment of their debts, then the simple contract creditors should stand in their place, and receive payment pro tanto out of the real estate. 1 In thus acting, equity was mitigating the effect of an iniquitous rule of law, and was relieving simple contract creditors from a gross injustice; and if the real estate had been by law primarily liable for the specialty debts, the personal estate being, as to such debts, only a surety for the real estate, equity would, as a matter of course, have thrown the specialty debts wholly upon the real estate, in the manner just stated ; and even if the personal and real estates had each been primarily liable for the specialty debts, it would have been a matter of course for equity to have thrown upon the real estate its pro rata share of such debts. In truth, however, the personal estate was by law primarily liable for all debts, and it was only as a surety for the personal estate that the real estate was liable even for specialty debts; and it seems, therefore, impossible to justify equity, in point of law, in relieving the personal estate from specialty debts by throwing the latter upon the real estate even for so worthy an object as that of securing payment of the simple contract debts. 2 Thirdly. When a deceased person has left a will, by which he has divided his estate among various persons, or by which he has divided parts of it among various persons, leaving other parts of it undisposed of, it is frequently a very nice question of construc- tion, upon which of the various beneficiaries under the will, and in what order, the burden of the testator's debts and pecuniary legacies shall fall ; and this question must of course be decided before the estate can be fully administered. So long as debts and legacies are imposed only upon property which is by law liable for the payment of them, or which is made so liable by the tes- tator, or upon property over which, being equitable assets, the court has full power no technical difficulty can arise, nor any diffi- culty as to the power of the court. Having decided the question of construction, the court simply proceeds to direct such parts of the estate to be applied in payment of debts and pecuniary lega- 1 Seton on Decrees (ist ed.), p. 88. See Pott v. Gallini, i S. & St. 206; Wilson v. Fielding, 2 Vern. 763, 10 Mod. 426; Gibbs v. Ougier, 12 Ves. 413. 2 See 1 Harvard Law Review, pp. 69-70.